Johnson, Jr. v. James Bruce, M.D., et al.

(36) Tentative Ruling

Re: Johnson, Jr. v. James Bruce, M.D., et al. Superior Court Case No. 25CECG03602

Hearing Date: August 13, 2026 (Dept. 502)

Motion: by Plaintiff to Set Aside Dismissal of Action

Tentative Ruling:

To grant. The dismissal entered on April 22, 2026, is set aside on grounds of “mistake, inadvertence, surprise or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) A Case Management Conference hearing is set for Thursday, November 12, 2026, at 3:30 p.m. in Department 502.

Explanation:

Attorney Affidavit of Fault:

The court is empowered to relieve a party “upon any terms as may be just ... from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473, subd. (b).) Where a motion seeking this relief is based on an “attorney affidavit of fault,” the relief is mandatory. Otherwise, relief is discretionary. A limitation on the mandatory relief is that the court may deny relief if it finds the default or dismissal “was not in fact caused by the attorney's mistake, inadvertence, surprise or neglect” (e.g. where the attorney is attempting to “cover up” for the client). (Id.)

Moreover, the law favors judgments on the merits. Where dismissals are the procedural equivalent on a default; i.e., those which deprive plaintiffs of their day in court, relief is favored. (Leader v. Health Indus. Of America, Inc. (2001) 89 Cal.App.4th 603, 618.)

Here, it is clear that the court’s dismissal of the action was caused by Mr. Kim’s repeated inadvertences. The court dismissed the action because plaintiff (or plaintiff’s counsel) failed to appear at the case management conference (“CMC”) and the subsequent order to show cause (“OSC”) hearing. Mr. Kim indicates that his failure to appear at the CMC was due to technical difficulties relating to zoom, and his failure to appear for the OSC was due to his ignorance in arranging for a zoom appearance in the Fresno Superior Court. (Kim Decl., ¶¶ 2, 5.) Therefore, it is clear that Mr. Kim’s mistakes caused the dismissal of the action. The court intends to grant the motion.

Procedural Requirements:

The application “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” 10

(Code Civ. Proc. §473, subd. (b).) But this requirement is not jurisdictional, and substantial compliance may suffice. (Carmel, Ltd. V. Tavoussi (2009) 175 CA4th 393, 403 [substantial compliance found where counsel offered proposed answer at motion hearing rather than serving it with moving papers.]; Austin v. Los Angeles Unified School Dist. (2016) 244 CA4th 918, 933 [plaintiff substantially complied with the “attached-pleading requirement” by offering facts and legal arguments in her motion.].) Given that, ordinarily, there is not a pleading to be filed by plaintiff at this stage of the proceedings; plaintiff is excused from this requirement.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: lmg on 8-12-26. (Judge’s initials) (Date)

11